Scottish Government lose court battle over legal definition of women

The Scottish Government has lost a court battle over legislation which expanded the legal definition of a woman.

Ministers were taken to court by campaign group For Women Scotland (FWS) over the Gender Representation on Public Boards Act, which creates a target for public boards to have 50 per cent of non-executive members who are women.

The legislation, which was passed by MSPs in 2018, states that the definition of woman should include “a person who has the protected characteristic of gender reassignment...if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female".

That means a trans woman who has not yet changed their legal sex from male to female using a Gender Recognition Certificate (GRC), but who is “living as a woman” would be covered.

FWS argued that by passing the law Holyrood had exceeded its authority by redefining the 2010 Equality Act, which is reserved to Westminster, and defines a woman as a female of any age.

The campaigners initially lost a judicial review last year, but have now won an appeal in the Court of Session. 

The three judges who presided over the appeal said the government did not have the power to have "expanded the definition of women" to include trans women. 

Their ruling said that by “incorporating those transsexuals living as women into the definition of woman, the 2018 Act conflates and confuses two separate and distinct protected characteristics”. 

They said the definition of woman adopted in the Act "impinges on the nature of protected characteristics which is a reserved matter."

The ruling added that "changing the definitions of protected characteristic, even for the purpose of achieving the [Gender Recognition Objective], is not permitted and in this respect the 2018 Act is outwith legislative competence."

A spokeswoman for FWS said: “We are delighted that we have won our appeal on the Gender Representation on Public Boards Act. 

“The judges have restated that the protected characteristic of sex refers to either a male of a female and that provisions in favour of women must, by definition, exclude those who are biologically male. 

“Once again, it fell to unfunded volunteers to challenge the power of the Scottish Government over faulty legislation. We would much rather our MSPs did their duty and scrutinised Bills thoroughly instead of leaving the courts to untangle them later. 

“It confirms that sex is significant in law and that women's concerns about the undermining of the protected characteristic are valid.“

The court’s ruling comes a day after another feminist campaign group lost their legal bid to challenge the binary sex question in the upcoming Scottish census.

In guidance notes prepared to accompany the census, NRS said that when answering the sex question transgender respondents do not need a GRC in order to say their sex is different to that which is recorded on their birth certificate.

Fair Play For Women asked the court to declare the guidance illegal on the basis that it is not possible for someone to legally change sex without a certificate that overrides the information recorded on their birth certificate. 

However, the Court of Session said there was, “no general rule or principle of law that a question as to a person's sex may only properly be answered by reference to the sex stated on that person’s birth certificate or gender recognition certificate".

It’s understood Fair Play For Women are mounting an appeal which will be heard next week.